White v. Granda, et al
ORDER AND REASONS denying 14 Motion for Summary Judgment. Signed by Judge Carl Barbier on 4/11/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICARDO GRANDA, ET AL.
ORDER & REASONS
NATURE OF MOTION AND RELIEF REQUESTED
Before the Court is a Motion for Summary Judgment (Rec. Doc.
(“Mercury County Mutual”).
Plaintiff filed an opposition to the
supplemental memorandum in support of its motion (Rec. Doc. 21).
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that the motion should be
FACTS AND PROCEDURAL BACKGROUND
The case arises out of a two-vehicle collision on U.S. Highway
90 in St. Charles Parish, Louisiana.
Plaintiff, Melannie White,
was allegedly driving down US Highway 90 when Defendant, Ricardo
Granda, drove across the median and struck Plaintiff’s vehicle
causing personal injuries to her.
On December 13, 2016, Plaintiff filed a Petition for Damages
in the 29th Judicial Court for the Parish of St. Charles naming as
Company, EAN Holdings, LLC, Mercury Insurance Group, Inc., and
GEICO Casualty Company (“GEICO”). (Rec. Doc. 1-2 at 9.) California
Automobile Insurance Company and/or Mercury Insurance Group, Inc.
allegedly issued a liability insurance policy to Granda; EAN
Holdings, LLC allegedly issued an insurance policy to Plaintiff; 1
insurance policy to Plaintiff. On August 29, 2017, Plaintiff filed
a First Supplemental and Amending Petition adding as Defendants
(“Westfield”). (Rec. Doc. 1-4 at 22.)
Plaintiff alleges that
Granda was within the course and scope of his employment with BHL
at the time of the accident and therefore BHL and its insurer,
Westfield, are also liable for Plaintiff’s injuries. Id.
On October 13, 2017, Westfield and BHL removed the case to
federal court on the basis of diversity jurisdiction. (Rec. Doc.
On November 29, 2017, Mercury County Mutual filed an answer
to Plaintiff’s amended petition, claiming that it was erroneously
identified by Plaintiff as Mercury Insurance Group, Inc. (Rec.
On that same day, Mercury County Mutual filed the
instant Motion for Summary Judgment, moving the Court to dismiss
all claims asserted against it because it did not provide a policy
On December 5, 2017, the Court granted Plaintiff’s motion to dismiss EAN
Holdings, LLC with prejudice. (Rec. Doc. 16.)
Plaintiff filed an opposition to the motion (Rec. Doc. 17) and
Mercury County Mutual filed a supplemental memorandum in support
of its motion (Rec. Doc. 21).
The motion is now before the Court
on the briefs and without oral argument.
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). When assessing whether a dispute as to any material
fact exists, a court considers “all of the evidence in the record
but refrains from making credibility determinations or weighing
the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but a party
cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court
ultimately must be satisfied that “a reasonable jury could not
return a verdict for the nonmoving party.” Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
Mercury County Mutual, erroneously named Mercury Insurance
Plaintiff has presented no evidence that it issued a liability
insurance policy to Granda.
(Rec. Doc. 14.)
In support of its
motion, Mercury County Mutual points to California Automobile
Insurance Company’s answer wherein California Automobile Insurance
Company admits that it provided an insurance policy to Granda.
(Rec. Doc. 1-2 at 26.) However, Plaintiff’s complaint alleges that
California Insurance Company and/or Mercury Insurance Group, Inc.
issued a liability insurance policy to Granda.
mere fact that California Automobile Insurance Company admitted
that it provided an insurance policy to Granda has no bearing on
whether or not Mercury County Mutual also provided a liability
Madison Insurance Group, Inc.’s president, Elizabeth King. 2
her affidavit, Ms. King states that Madison Insurance Group, a
foreign insurance agency with a principal place of business in
Tennessee, used to operate in Louisiana from October 2009 to June
2012 under the name Mercury Insurance Group, Inc. (Rec. Doc. 21-
Ms. King’s affidavit was initially submitted in this case as a part the removal
proceedings. As a part of the notice of removal, BHL and Westfield claimed
that Mercury Insurance Group was the only non-diverse party in the litigation
but that diversity of citizenship still existed because Mercury Insurance Group
was improperly joined as a defendant and improperly served. BHL and Westfield
relied on the same affidavit of Ms. King to show that Madison Insurance Group
had been improperly named Mercury Insurance Group. Mercury Insurance Group had
not filed an answer to the complaint or the amended complaint prior to removal
on October 13, 2017. The first time Mercury County Mutual, erroneously
identified as Mercury Insurance Group, appeared in this case was when it filed
an answer on November 28, 2017. (Rec. Doc. 12.) As explained above, in light
of Mercury County Mutual’s answer stating that it was erroneously identified as
Mercury Insurance Group and its subsequent motion for summary judgment, the
stated reasons for removal based on diversity jurisdiction appear to be
Ms. King explains that Madison Insurance Group changed its
name in June 2012 as a result of trademark infringement litigation
brought against it. Id.
Ms. King further states that Madison
Insurance Group never issued an insurance policy to Granda because
it is an insurance agency and not a licensed insurance carrier.
Mercury County Mutual does not explain its connection to
Madison Insurance Group or how Ms. King’s affidavit demonstrates
that Mercury County Mutual did not issue Granda an insurance
In light of the fact that Mercury County Mutual answered
on behalf of Mercury Insurance Group, it appears that Ms. King’s
affidavit and Madison Insurance Group are wholly irrelevant to the
present case. Therefore, Mercury County Mutual’s reliance on Ms.
King’s affidavit is futile. 3
Plaintiff argues that Mercury County Mutual’s motion should
be denied because it failed to produce any evidence showing that
it did not issue Granda an insurance policy.
misconstrues Mercury County Mutual’s initial burden of proof as
movant on a motion for summary judgment.
Plaintiff has the burden
at trial to show that Mercury County Mutual issued Granda an
insurance policy. “If the non-movant bears the burden of proof at
Mercury County Mutual also mentions that service was made on a “separate
insurer,” which presumably is in reference to Madison Insurance Group. (Rec.
Doc. 14-1 at 2.) To the extent that Mercury County Mutual is attempting to
argue that the claims against it should be dismissed for improper service, it
has lost that opportunity.
By answering and filing a motion for summary
judgment, Mercury County Mutual has waived any challenge for improper service.
See Fed. R. Civ. P. 12(h).
trial, the movant on motion for summary judgment need not support
the motion with evidence negating the opponent's case; rather, the
movant may satisfy its burden by showing that there is an absence
of evidence to support the non-movant's case.”
See Edwards v.
Rowan Companies, Inc., 14-1934, 2015 WL 5060505, at *2 (E.D. La.
Aug. 25, 2015) (citing Latimer v. Smithkline & French Lab., 919
F.2d 301, 303 (5th Cir. 1990)).
Here, Mercury County Mutual has
satisfied its initial burden of pointing out the lack of proof on
a material issue of fact in Plaintiff’s case: whether Mercury
County Mutual issued an insurance policy to Granda. Therefore, the
burden shifts to Plaintiff to establish with sufficient evidence
that a genuine issue exists.
First, Plaintiff claims that the State of Louisiana Uniform
Motor Vehicle Crash Report lists “Mercury Insurance Company” as
the insurer of Granda.
However, Plaintiff failed to attach a copy
of the Crash Report for the Court’s consideration. 4
Plaintiff states that she successfully established a claim with
“Mercury Insurance Group, Inc.” as evidenced by a letter dated
INSURED.” (Rec. Doc. 17-2.)
The letter is signed by an employee
of the California Automobile Insurance Company Claims Department,
however, it is on a “Mercury Insurance Group” letterhead.
It appears that Plaintiff attempted to attach the Crash Report as Exhibit 1,
but instead, attached a duplicate copy of Exhibit 2. See Rec. Doc. 17-2, 17-3.
Court finds that under the circumstances, this letter is sufficient
to defeat Mercury County Mutual’s Motion for Summary Judgment.
Plaintiff has adequately demonstrated that there is a genuine issue
of material fact as to whether Mercury County Mutual, erroneously
named Mercury Insurance Group, issued an insurance policy to
Therefore, the Court must deny the motion at this time.
IT IS HEREBY ORDERED that Mercury County Mutual’s Motion for
Summary Judgment (Rec. Doc. 14) is DENIED.
New Orleans, Louisiana this 11th day of April, 2018.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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